Ellmossallamy v. Huntsman

830 S.W.2d 299, 1992 Tex. App. LEXIS 1071, 1992 WL 85177
CourtCourt of Appeals of Texas
DecidedApril 30, 1992
DocketC14-90-01035-CV
StatusPublished
Cited by19 cases

This text of 830 S.W.2d 299 (Ellmossallamy v. Huntsman) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellmossallamy v. Huntsman, 830 S.W.2d 299, 1992 Tex. App. LEXIS 1071, 1992 WL 85177 (Tex. Ct. App. 1992).

Opinions

OPINION

DRAUGHN, Justice.

Appellant asks us to reverse the trial court’s order dismissing his case for want of prosecution and its denial of his motion to reinstate.

This is another " appellate entry in that ever expanding category of cases dismissed by the trial court for want of prosecution. However, this case reaches us in a somewhat different posture than previous cases of this type in that the parties had conducted considerable pre-trial discovery, and the case was preferentially set and ready for trial. And, but for an apparently misunderstood settlement agreement announced to the court, would have proceeded to trial. Instead the case was deferred, the settlement agreement revoked, and the case was dismissed by the court for want [300]*300of prosecution. The court’s dismissal was apparently based on the appellant’s alleged inaction for the four-month period from the date of the deferred trial setting until the court’s dismissal. Therefore, our focus must essentially be directed at that period of time to determine whether the trial court abused its discretion in dismissing this case for want of prosecution. However, we must also look at that period of time in the context of the whole ease to put it in proper perspective. State v. Rotello, 671 S.W.2d 507, 509 (Tex.1984); Fedco Oil Co. v. Pride Refining Co., 787 S.W.2d 572, 573 (Tex.App.—Houston [14th Dist.] 1990, no writ).

On December 3, 1987, appellant, Hesham Ellmossallamy, filed a personal injury action against appellee, Billy Huntsman, to recover damages sustained in an August 23, 1986, automobile accident. After appel-lee answered with a general denial on December 17, 1987, discovery immediately began and the case was set for trial before the court on October 26, 1988. Appellant then filed a motion for continuance stating he was a student in California and requested a summer trial date. Without giving a specific trial date, the court granted the continuance and discovery progressed.

After the cause was placed on the May 10, 1989, dismissal docket for want of prosecution, appellant filed a motion to retain which the trial court granted. The trial court notified the parties of an October 17, 1989, non-jury trial date and later rescheduled the case for a preferential jury trial setting for February 21, 1990.

On that February trial date, appellee’s counsel appeared before the court and announced the parties had reached a settlement. He dictated into the record that appellee would pay $3,500 to appellant plus court costs, but appellant’s attorney fees would be deducted from the settlement. When the trial court questioned whether appellee’s counsel had appellant’s authority to make these statements, counsel confirmed this and declared he would prepare the judgment. Appellee’s counsel stated the settlement would be delivered before the following Monday and a compromise take-nothing judgment would be signed af-terwards. The trial court accepted the proposed settlement following counsel’s agreement to have both parties’ attorneys approve the judgment before it reached the court.

The next recorded activity occurred after the trial court’s June 22, 1990, notice to the parties placing the case on the August 22, 1990, dismissal docket. Filing a verified motion to retain on August 22, 1990, appellant asserted he had withdrawn his consent to the settlement terms and had not signed a release or agreed judgment. The trial court denied this motion, dismissed the case on August 27, 1990, and appellant subsequently filed a verified motion to reinstate on September 19, 1990. In his attached sworn affidavit, appellant explained he misunderstood the $3,500 total damages amount in the settlement agreement to be exclusive of his medical expenses although his counsel thoroughly discussed the settlement terms with him. Thus, he withdrew his attorney’s authority to settle the suit as soon as he comprehended the total damages amount.

During the reinstatement motion hearing on October 10, 1990, appellant’s counsel informed the trial court he had attempted, but failed to contact appellant until June when appellant withdrew his consent. Since judgment had not been rendered, appellant’s counsel claimed appellant’s mistake concerning the settlement terms was an adequate reason for the court to reinstate the case. The trial court overruled the motion and this appeal followed.

The appellate standard of review of a dismissal for want of prosecution is whether the trial court committed a clear abuse of discretion. Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85, 87 (1957); Armentrout v. Murdock, 779 S.W.2d 119 (Tex.App.—Houston [1st Dist.] 1989, no writ). To determine if there is an abuse of discretion, we must look to see if the trial court acted without reference to any guiding rules and principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986).

On the issue of dismissal for want of prosecution, the sole test is whether the case was prosecuted to judgment with rea[301]*301sonable diligence and the court has the inherent power to dismiss if the plaintiff fails to do this. Bard v. Frank B. Hall & Co., 767 S.W.2d 839 (Tex.App.—San Antonio 1989, writ denied); Stromberg Carlson Leasing Corp. v. Central Welding Supply Co., 750 S.W.2d 862, 864 (Tex.App.—Houston [14th Dist.] 1988, no writ). In addition, Tex.R.Civ.P. 165a expressly authorizes trial courts to dismiss a case which was not prosecuted diligently. Stromberg Carlson, 750 S.W.2d at 864. However, the trial court’s right to dismiss a suit for failure to prosecute it with due diligence is not an unbridled discretion, but a judicial discretion subject to review. William T. Jarvis Co., Inc. v. Wes-Tex Grain Co., 548 S.W.2d 775, 778 (Tex.App.—Waco 1977, writ ref’d n.r.e).

In his first and third points of error, appellant claims the trial court abused its discretion in denying his motion to retain and dismissing the case for want of prosecution. Appellant asserts he complied with the trial court’s June 22, 1990, notice to preclude dismissal by filing a sworn motion to retain on or before August 22, 1990. Appellant’s motion stated, in pertinent part:

Movant would say that a settlement was dictated by counsel for Defendant at the time of trial scheduled for February 21, 1990. However, Plaintiff has now taken the position that he does not want to settle his case upon those terms and has not signed a release or agreed judgment as of this time. In the event this Honorable court resets this case for trial, Plaintiff will be ready to proceed. (Emphasis added).

However, appellee argues that the motion to retain did not meet the following applicable guidelines of the trial court’s June notice:

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Ellmossallamy v. Huntsman
830 S.W.2d 299 (Court of Appeals of Texas, 1992)

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Bluebook (online)
830 S.W.2d 299, 1992 Tex. App. LEXIS 1071, 1992 WL 85177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellmossallamy-v-huntsman-texapp-1992.